A debate between two progressive legal experts on the FISA bill and the idea of prosecuting of Bush and White House officials for criminal acts.

The whole article is worth reading. Thanks to "Fair Use" here are a few excerpts...

In this corner, Glenn Greenwald:

The idea that this wasn't a reversal is just insultingly false. Back in December, Senator Obama was asked, "What is your position on Senator Dodd's pledge to filibuster a bill that contains retroactive immunity?" And at first, Senator Obama issued an equivocal statement, and there were demands that he issue a clearer statement. His campaign spokesman said -- and I quote -- "Senator Obama will support a filibuster of any bill that contains retroactive immunity" -- "any bill that contains retroactive immunity." The bill before the Senate two weeks ago contained retroactive immunity, by everybody's account, and yet not only did Senator Obama not adhere to his pledge to support a filibuster of that bill, he voted for closure on the bill, which is the opposite of a filibuster. It's what enables a vote to occur. And then he voted for the underlying bill itself. So it's a complete betrayal of the very unequivocal commitment that he made not more than six months ago in response to people who wanted to know his position on this issue in order to decide whether or not to vote for him. That's number one.

Number two, the idea that this bill is an improvement on civil liberties is equally insulting in terms of how false it is. This is a bill demanded by George Bush and Dick Cheney and opposed by civil libertarians across the board. ACLU is suing. The EFF is vigorously opposed. Russ Feingold and Chris Dodd, the civil libertarians in the Senate, are vehemently opposed to it; they say it's an evisceration of the Fourth Amendment. The idea that George Bush and Dick Cheney would demand a bill that's an improvement on civil liberties and judicial oversight is just absurd. This bill vests vast new categories of illegal and/or unconstitutional and warrantless surveillance powers in the President to spy on Americans' communications without warrants. If you want to say that that's necessary for the terrorist threat, one should say that. But to say that it's an improvement on civil liberties is just propaganda.

In the other corner, Cass Sunstein:

Well, I speak just for myself and not for Senator Obama on this, but my view is that impeachment is a remedy of last resort, that the consequences of an impeachment process, a serious one now, would be to divide the country in a way that is probably not very helpful. It would result in the presidency of Vice President Cheney, which many people enthusiastic about impeachment probably aren't that excited about. I think it has an understandable motivation, but I don't think it's appropriate at this stage to attempt to impeach two presidents consecutively.

In terms of holding Bush administration officials accountable for illegality, any crime has to be taken quite seriously. We want to make sure there's a process for investigating and opening up past wrongdoing in a way that doesn't even have the appearance of partisan retribution. So I'm sure an Obama administration will be very careful both not to turn a blind eye to illegality in the past and to institute a process that has guarantees of independence, so that there isn't a sense of the kind of retribution we've seen at some points in the last decade or two that's not healthy.

SNIP...

Well, there has been a big debate among law professors and within the Supreme Court about the President's adherent authority to wiretap people. And while I agree with Senator Feingold that the President's position is wrong and the Supreme Court has recently, indirectly at least, given a very strong signal that the Supreme Court itself has rejected the Bush position, the idea that it's an impeachable offense to adopt an incorrect interpretation of the President's power, that, I think, is too far-reaching. There are people in the Clinton administration who share Bush's view with respect to foreign surveillance. There are past attorney generals who suggested that the Bush administration position is right. So, I do think the Bush administration is wrong -- let's be very clear on that -- but the notion that it's an impeachable offense seems to me to distort the notion of what an impeachable offense is. That's high crimes and misdemeanors. And an incorrect, even a badly incorrect, interpretation of the law is not impeachable.